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ОглавлениеChapter 1. Sport as an area of legal regulation Chapter 2. Governance of the elements of sport Chapter 4. Governing of sport events Chapter 5. Offences and responsibilities in the field of sport Для бесплатного чтения доступна только часть главы! Для чтения полной версии необходимо приобрести книгуChapter 1. Sport as an area of legal regulation§ 1. Legal definition of sport1. The need for the exact legal definition of “sport”Researching the place and importance of sport in society, in the national politics and in international relations, and the importance and features of public administration in sports leads to the need to identify and interpret the meanings that make up the concept of “sport”. Especially since one cannot do without a precise and clear interpretation of this concept in sports law. A precise understanding of this concept is necessary to improve the public regulation in sport. The definition in question is also required to ensure the quality of the translation of foreign sports regulating acts into Russian, as such acts often use the words “sport” or even “athletics” or other similar words instead of “physical culture and sport” that are used in Russian laws. According to the french authors F. Buy, J. — M. Marmayou, D. Poracchia, and F. Rizzo in their book “Droit du Sport”, “definitions are the main instruments of lawyers as they find therein the sources for their classifications and the ways of understanding and interpretation of the actual situations, the qualifications thereof in terms of law. The term “sport” needs to be defined in order to give to this subject one of the most essential theoretical and practical grounds”. These authors point out at the fact that the legal definition of sport has not merely theoretical interest, and one cannot take into account the specificity of sport without such a definition. 2. Definitions of “sport” in laws of Russia and foreign countriesThe Federal Law, dated December 4, 2007 No. 329-FZ “On Physical Culture and Sport in the Russian Federation” provides for a hardly suitable definition of sport as it derives from the same concept of sport (sport is a set of sports): “Sport is a part of social and cultural activities considered as a number of sports established in the form of competitions and special preparation for these competitions.” (clause 12 Article 2). Significantly interesting is an overview of approaches to stipulation and the features of such stipulation of the said definition in foreign laws on sport, as well as the analysis of the interpretations therein. In some cases, instead of the essential features of sports, they provide for (in the definition in full or in the key part thereof) the definition of sport and its positive consequences or purposes (clause “I” of the introductory part in the Law of Andorra, November 30, 1998 “On Sport”; clause 2, Article 1, Law of the autonomous community La Rioja (Spain)“On Sport in the Autonomous Community La Rioja”, dated May 2, 1995; clause 10, Article 1, the Law of Latvia, November 13, 2002 “On Sport”; Article 1 of the Law of Montenegro, 2004, “On Sport”; Article 2 of the Law of the Mendoza Province (Argentina), January 2, 1997, No. 6457 “On Sport Leisure”; clause VI, Article 2, the Decree of State of Mexico (Mexico), September 10, 2002 — the Law “On Physical Culture and Sport in the State of Mexico”; clause ”d”, Article 2 of the Law of the Republic of Armenia, July 10, 2001, “About Physical Culture and Sport” (as amended); Article 2 of the Irish Sports Council Act May 18, 1999, etc.). Quite frequently, they specify the forms of sports and sport activity and the structure of sport instead of providing for the material features of sports (Article 2 of the Malta Sports act, 2002, No. XXVI; Article 2 of the Law of Serbia, 2005, “On Sports”; part 2 Article 2 of the Law of Jura (Switzerland), November 17, 2010 “On the Promotion of Physical Culture Activities and Sports”, etc.). Thus, the essential aspects that characterize the nature of sport and allow to separate the area and specifics of sport from other areas of social relations remain beyond the said provisions. However, in other cases, the analysis of the definitions for “sport” set forth in the foreign legislation acts allows to highlight the following key elements of interpretation of the definition under consideration: • institutionalized and regulated activity (activity regulated by pre-established rules as the provisions of the relevant laws on sport applied in Mexico States of Hidalgo, Tlaxcala, Sonora, Chihuahua, Guerrero, Quintana Roo, and Oaxaca); • physical activity and “exercises” (variants: physical and intellectual activity; physical training or motor activity; intense forms of exercises) practiced individually or collectively (the provisions of relevant laws on sport in Mexico States of Hidalgo, Querétaro, Sonora, Colima, and Coahuila de Zaragoza); • activity carried out in the form of competitions aimed at achievement of maximum performance (provision in the Law of the Mexico State Tlaxcala, December 1, 2005 “On Physical Culture and Sport in the State of Tlaxcala”); • activity carried out in overcoming oneself or in competition with a rival (the provisions of relevant laws on sport applicable in Mexican States of Sonora and Colima); • actions to achieve the perfection of morphological and functional and mental capacities of participants (the provisions of the Law of Colima State (Mexico), April 16, 1997 “On the Development and Support of Sports and Physical Culture”); • activity carried out in the form of competitions aimed at achievement of maximum performance (productivity) (version: aimed at achievement of high performance standards — the provision in the Chile Law “On Sports”, January 30, 2001; the provisions of the relevant laws on sport applicable in Mexican States of Chihuahua, Guerrero, Oaxaca, and Quintana Roo); • activity pursuing leisure or competitive objectives, aimed at developing individual skills (the provisions of the relevant laws of the Mexico States Campeche, Morelos and Nuevo León); • activity carried out in the form of a game or a competition (the provision in the Law of the State of Coahuila de Zaragoza (Mexico)“On Physical Culture and Sport in the State of Coahuila de Zaragoza”, etc.); • activity aimed at obtaining the sport results within the established rules (the provision of the Law of Bosnia and Herzegovina, 2008, “On Sport in Bosnia and Herzegovina”); • activity aimed at identifying and standardized comparison of the achievements of people in physical, intellectual and other development through sport events and the relevant preparation thereto (the Law of Ukraine, December 24, 1993 “On Physical Culture and Sport”); • activity in accordance with formal rules and procedures in which two or more people compete to esteem their personal achievements (versions: activity aimed at obtaining results in competitions at all levels; activities carried out by means of competitions or demonstrations — the Sport Development Trust Fund Act of New Brunswick (Canada), dated May 13, 2011; the Law of the Autonomous Community of Castilla y León (Spain)“On Sport in Castilla y León”, dated March 28, 2003; the Law of Chile “On Sport”, dated January 30, 2001); • all the forms of physical activity which, through organized or unorganized participation, aim at demonstration or improvement of physical and mental condition, and at obtaining the results in competitions at all levels (the General Law of El Salvador, dated November 15, 2007 “On Sport in El Salvador”); • activity characterized by the commission of actions in the game and the competitive desire to prove the sport superiority or to pass the sport test, and this activity is carried out by means of physical and mental exercises (the Law of Columbia, January 18, 1995 “On Approving the Provisions on the Development of Sport, Leisure, Providing of Leisure, on Physical Training, and on the Establishment of the National System of Sport”); • form of a physical activity that uses human movement as a means to develop the person as a whole, and that includes all types of physical training, whether general or special (Chile Law “On Sport”, dated January 30, 2001). 3. Scientifically developed definitions of “sport”According to the definition proposed by A. Solovyov, “sport (in the narrow sense, as a sporting activity) is a voluntary individual and (or) collective, professional and (or) amateur, systematic and (or) periodic activity that is inherently coupled with the competitive elements of the physical and/or intellectual load and with regularly organized and conducted, according to the established rules, competitions of integrated (physical, emotional, psychological and intellectual) abilities and achievements of its members, fixing and evaluation of these achievements, as well as a special practice to prepare for this activity, and individual social relations arising in connection with the arrangement and support of such activities, as well as with its audiovisual and other media coverage”. The contrastive analysis of the above features (partially overlapping) gives grounds to propose the following definition for the concept of “sport”. Sport is an area of social relations, and a decentralized stratified system of institutionalized and regulated activities pursuing competition, educational, cultural, recreational, health or business purposes, related to the organized or unorganized implementation by one or more persons or an association of persons according to certain rules and procedures in the form of training (including exhibition performances) and (or) in the forms connected with surmounting oneself (passing physical test), or with a competition with an opponent; physical actions aimed at the development, achievement, demonstration and identification of a high level of morphological and functional and mental capabilities and achievements of participants, their maximum performance (technicality and (or) achievement of high performance standards) and (or) establishing, out of two or more competing parties (individual or team members) the best one in the contest (the winner). 4. Definition of professional sportWhen studying the legal concept of sport, one should delimit the legal notion of professional sport as it needs its own interpretation. Professional sport is a set of forms of sport and the associated activities and social relations (including sporting relations, labor sporting relations, business relations, as well as the disciplinary and hierarchical relations in sport organizations) related to: • sport events, including entertainment events, organized and systematically held by public authorities, sport organizations and other organizations in order to make profits and (or) develop a sport according to the legally established regulations applicable to organizing and holding of such activities; • training (subject to the direct participation of the heads of sport organizations and professional sports coaches) and demonstrative and competitive systematic participation of professional athletes (on the basis of an employment contract, a civil contract, or, in some cases, on the basis of passing the qualification selection) in sport events for a certain remuneration in the form of pecuniary (salary, allowance, premiums, etc.) and (or) non-pecuniary (prestige, sport qualification at a certain level) benefits from the event organizers, their sport organizations or sports sponsors and others, individually or as a member of a professional sport team, in order to achieve high sports results and (or) sports contest; • the performances that are resulted from the held sport events, and that are established, fixed and announced by professional referees (who work on a contractual basis for a fee in the form of pecuniary benefits such as salary, allowance, premium provided by event organizers, by the state or by a sport organization); as well as order and compliance with the rules and other regulatory statutes ensured by the said referees in the field of sport — when holding and summarizing sport events. § 2. Autonomy of sport and its limits. Self-governance and autonomous regulatory…order in the field of sport1. General definition and meaning of autonomy of sportSport as a decentralized system, and the state as a centralized system are largely inherently separate, autonomous and independent areas. The current trend of social relations in the field of sport that is fixed in many countries is the increasing role of public administration, including state regulation, within the powers of the state authorities, concurrently with increasing the role of self-government, including self-regulation in this area, which is aimed at ensuring the conditions for sustainable operation of national and international sports relations systems, for the protection of public and private legal interests, as well as the generally accepted moral values. The increasing complexity of the interaction between these two regulatory systems determines the need for scientific study of their interaction mechanisms and of the criteria for the optimal combination thereof. The reasons for need to increase efficiency of public administration in the field of sport, including the improvement of regulatory support in this area, comprise inter alia the status of social relations and law enforcement practice in the field of sport in Russia, and this status is characterized by significant problems, in particular, the poor provision of the administrative legal regulation being properly combined with self-regulation of the relations in this field. Nowadays, it is believed that, when organizing and carrying out public administration, one should take into account the significantly increased role of non-state/non-municipal entities and their ever increasing part in the processes of public and social administration in the formation of public policy. In accordance with this approach, the state is turning from being the main provider of public policy to just an interface for the different interests in society the value of which may be reduced to coordinating and managing such processes. This also leads to changes in the instruments of public administration. One of the most striking examples for the autonomy of whole areas of social relations independent on the public power system (public authorities and local self-governments) are social relations in sports that are a special world having its own deontological principles and its own rules, and including a variety of relationships: competitive sports (amateur and professional), sports leisure, Olympic and Paralympic movement, industries of spectacular sport events, sport goods, the scope of operation of sports facilities, the fields related to copyright to the broadcast of sport events, and many other segments. The principle of autonomy of sport (German “autonomie des Sports”; French “autonomie du sport”; Spanish “autonomía del deporte”; Italian “autonomia dello sport”) is one of the major principles of operation, reproduction and development of sport. This very principle is the thing that allows to organize and also delineate the relationships of an individual, society and state in this sphere, and to prevent or reduce the imbalances in the sphere. Accordingly, the key feature of interaction between state administration and self-government in the field of sport is the connection (limitedness) of state administration with the principle of autonomy of sport. This principle of autonomy of sport is embodied in autonomous extralegal statutory order in the field of sport, and is to be recognized and guaranteed by the state in its basic part, and is to be allowed by the state in its remaining part, based upon the selected model of sports administration. The term “autonomy” comes from the ancient Greek and is composed of the words αὐτο (“self”) and νομός (“law”). Translated literally, it means “independent legislator”. Thus, autonomy of something/someone means self-management of something/someone in accordance with something/someone’s own laws or regulations. Autonomy concept is used in many disciplines and may have different meanings depending on the circumstances. In a general sense, autonomy is a definitely established and statutorily fixed transfer of the minimum scope of regulatory and executive powers to an independent, self-governing and self-regulating entity. In law, autonomy (with respect to the aspects under consideration) is regarded in terms of autonomy from the public power system (public authorities and local self-governments). By E. Lubrano, “autonomy of sport is in its essence a barrier preventing the legal system from interfering through its laws and legal instruments, in order to implement them, with an area protected by regulations set by other statutory order (in the words of the concept of I. Marani Toro and A. Marani Toro —“sport order”, in its autonomous part), provided that the steps and decisions in this field have not exhausted their effectiveness”. For the first time, the term “autonomy” in relation to sport was used in 1949 in the Olympic Charter and regarded National Olympic Committees. In accordance with Article 25 Olympic Charter 1949, independence and autonomy were one of the main requirements to organize National Olympic Committees. All the known models of public administration and regulation in the field of sport have always provided for a certain autonomy of sport (embodied in the autonomous institutionalization in the field with self-government as its activity component). Modern trends of increasing complexity and interaction of law with other complexes of social rules, increasing use of self-regulation and self-government in various areas of social relations reinforce the need for an optimal combination and development of cooperation of public administration and self-government in the field of sport, including a combination of administrative legal regulation and self-regulation of relations in this area as a mechanism to improve the efficiency of public administration in the field of sport within objectively conditioned limitedness of resources. 2. Features, elements, and the definition of the autonomy of sportOne of the definitions to the autonomy of sport is proposed by J. — L Chappelet who defines the autonomy of sport, within the framework of national, European and International law, as “the possibility for non-governmental, non-profit-making sport organizations to: 1) establish, amend and interpret rules appropriate to their sport freely, without undue political or economic influence; 2) choose their leaders democratically, without interference by states or third parties; 3) obtain adequate funds from public or other sources, without disproportionate obligations; 4) use these funds to achieve objectives and carry on activities chosen without severe external constraints; 5) draw up, in consultation with the public authorities, regulatory regimes proportionate to the fulfilment of these objectives”. The features of the autonomy of sport are extensively formulated in the Recommendation No. CM/Rec (2011) 3 of the Committee of Ministers to member states on the principle of autonomy of sport in Europe, dated February 2, 2011: • “the autonomy of sport is, within the framework of national, European and international law, the possibility for non-governmental non-profit-making sport organizations to: • establish, amend and interpret the “rules of the game” appropriate to their sport freely, without undue political or economic influence; • choose their leaders democratically, without interference by states or third parties; • obtain adequate funds from public or other sources, without disproportionate obligations; • use these funds to achieve objectives and carry out activities chosen without severe external constraints; • co-operate with public authorities to clarify the interpretation of the applicable legal framework in order to prevent legal uncertainty and contribute, in consultation with public authorities, to the preparation of sports rules, such as competition rules or club rules of sports NGOs, which are legitimate and proportionate to the achievement of these objectives” (clause 1). Nevertheless, the level of itemization of these main features describing the concept of the autonomy of sport, still does not allow to understand and interpret this concept in a proper way, to identify and describe its features at an appropriate level, structure and nature. Autonomy of sport can be defined as an organizational and regulatory feature of sport (and, at the same time, the principle of the organization and functioning of the sport relations subjects) reflecting the decentralized organization of social relations in this field, the relative (i. e. within certain limits) legislative and law enforcement self-sufficiency and independence of sport, institutional structural and organizational, financial and economic, political and ideological self-sufficiency and independence of the field of sport on the public authority, as well as independence on political organizations, religious associations and business organizations, independence on authorization, interference and pressure from the part of the said entities. For the regulatory framework of the autonomy of sport, one should first point out at the fifth Fundamental Principle of Olympism, the Introduction to the Olympic Charter: “Recognizing that sport occurs within the framework of society, sport organizations within the Olympic Movement shall have the rights and obligations of autonomy, which include freely establishing and controlling the rules of sport, determining the structure and governance of their organizations, enjoying the right of elections free from any outside influence and the responsibility for ensuring that principles of good governance be applied.” Clause 5, § 2 “Mission and role of the IOC”, Chapter 1 “The Olympic Movement”, the Olympic Charter, obliges the International Olympic Committee “to take action to strengthen the unity of the Olympic Movement, to protect its independence and to preserve the autonomy of sport”, and clause 6, § 27 “Mission and role of the NOCs” Chapter 4 “The National Olympic Committees (NOCs)” of the Olympic Charter says that the NOCs “must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter.” |
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